Sen. Josh Hawley, R-Mo., responding to conservative outrage over bias at social media sites led by YouTube, Facebook, and Twitter, is out with a new bill branded as the ‘‘Ending Support for Internet Censorship Act.’’ But if enacted, it’s likely to result in more censorship, not less.
The legislation takes direct aim at Section 230 of the Communications Decency Act of 1996, which currently grants immunity for social media platforms from liability lawsuits stemming from content posted by users.
A number of conservatives have argued that the social media sites are increasingly making editorial decisions that exhibit the characteristics of a publisher, which thus should end their immunity.
“With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship,” Hawley said. “Unfortunately, and unsurprisingly, big tech has failed to hold up its end of the bargain.”
Under Hawley’s proposal, the immunity would be ended, but social media giants could apply to the Federal Trade Commission every two years to obtain a certificate of immunity if they can demonstrate that they are removing content on a politically neutral basis.
However, it seems to me that if social media firms are worried about being liable for user generated content, they’re likely to be more aggressive in taking down any vaguely political content, out of fear that it could put them in legal jeopardy. They aren’t likely to respond by being more open to controversial posts from all sides.
To the extent they allow news or political content, it’s likely to come from legacy media who the tech giants know themselves have to guard against the potential of lawsuits.
Lawyers will no doubt take some time to look at whether the Hawley “certification” approach would pass constitutional muster. But from a policy perspective, it’s awful.
Partisan control of the FTC changes from administration to administration, and there’s no objective criteria for determining political neutrality. So this would leave decisions about political content on social media up to the arbitrary judgment calls of federal regulators.
I get that conservatives are frustrated about bias shown in decisions to ban or suspend users, but this response would only lead to a more restrictive speech code.
